Osler v. Atlas Assur. Co. , 127 Miss. 511 ( 1921 )

Holden, J.,

delivered the opinion of the court.

The appellant, Osier, sued the appellee, Assurance Company, on a tornado policy for one thousand dollars on a house destroyed by a cyclone of April 20, 1920; a peremptory instruction to.find for the defendant was granted in the lower court, from which judgment this appeal is prosecuted.

The tornado insurance policy among other things provides that — “In case of any fraud, false swearing, misrepresentation, or concealment by the insured touching any matter relating to this insurance or the subject thereof; or if any change, other than by the death of the insured, take place in the interest or title of the subject of this insurance, . . . this entire policy shall be void.”

At the trial the defendant Assurance Company gave notice of and relied upon this provision of the policy as a defense to the action, on the ground that there had been a change in the interest or title of the property that was destroyed after the issuance of the policy and before the tornado occurred. The plaintiff below contended that there was no change in the interest or title of the insured property.

The proof in the record, which is not materially contradicted, shows that appellant, Osier, before the destruction of the property, put one Joe Miller in possession of the property under an .agreement to sell it to him for the sum of four thousand, fiye hundred dollars. Miller [laying one thousand, one hundred dollars cash to O'sler on the agreed purchase price; that appellant, Osier, had executed a deed to Miller to the property, Avhich he did not deliver, but was holding for the purpose of delivering to Miller as soon as the purchase price of the property had been fully paid.

At the time the property was destroyed by the tornado, and at which time the cause of action under the policy accrued, the deed had not been delivered, nor had there been executed and delivered any contract in writing between Osier and Miller with reference to the purchase of the property.

There is considerable argument here by counsel for the appellee regarding an alleged delivery of the deed after the property was destroyed and the right of action had accrued; and it is also argued that a policy by another tornado insurance company was issued and paid to Miller for the- loss of this same property. But we do not think it material as to anything that happened after the loss occurred and the right of action arose. The main point presented in this appeal, and which is decisive of the case, is whether or not the evidence in the case shows that the provision in the policy against a “change of interest or title” in the property had been violated by the insured before loss.

It seems clear to us that the proof in the case wholly fails to show there was any change in the interest or title of the property after the issuance of the policy and before the loss occurred. A conveyance or contract conveying “any interest” in land or passing any title thereto must be in writing under section 2763, Code of 1906 (section 2267, Hemingway’s Code), and also section 4775, Code of 1906 (section 3119, Hemingway’s Code.) There1 was no interest or title conveyed or passed by writing in this case; therefore, there was no “change in the interest or title” of the property destroyed, as provided in the clause of the policy.

The evident meaning of the provision, which is to be construed most strongly against the insurance company who claims a forfeiture, is that, if there is a change in the interest— that is, the ownership — of the property the policy shall be thereby vitiated. But in this case the ownership, or any interest in .it, in the land could not be changed except it be done in writing and delivered. Under the proof in this record we do not think, though unnecessary to decide, that specific performance could have been enforced by Miller, because of the failure to contract and deliver in writing. But, if mistaken in this, still it seems plain to us that no cliange of interest or title, as provided and contemplated in the clause of the policy, took place in this case. Erb v. German A. Ins. Co., 98 Iowa, 606, 67 N. W. 583, 40 L. R. A. 845; Aetna Ins. Co. v. Aston, 123 Va. 327, 96 S. E. 772; Moseley v. Northwestern Ins. Co., 109 Mo. App. 464, 84 S. W. 1000; Garner v. Milwaukee Mechanics’ Ins. Co., 73 Kan. 127, 84 Pac. 717, 4 L. R. A. (N. S.) 654, 117 Am. St. Rep. 460, 9 Ann. Cas. 459; International Wood Co. v. Assurance Co., 99 Me. 415, 59 Atl. 544, 105 Am. St. Rep. 288, 2 Ann. Cas. 356.

For the reason given, we decide that the lower court erred in granting a peremptory instruction for the ap-pellee Insurance Company, and we hold that the appellant, Osier, was entitled to a peremptory instruction to find for the amount sued for.

Reversed, and judgment here for appellant.